1.
Appellant/cross-respondent failed to prove that he was
actually prejudiced by the district court's denial of his
motion to change venue based on media reports of statements
made by the county attorney during a pretrial press
conference.

2. The
State established that the alleged prosecutorial
misconduct-statements made by the county attorney during a
pretrial press conference-did not affect the substantial
rights of appellant/cross-respondent.

3. The
court of appeals erred when it reversed the sentence imposed
by the district court that included an upward durational
departure based on the zone-of-privacy factor in Minn. Stat.
§ 244.10, subd. 5a (2016).

Affirmed
in part and reversed in part.

OPINION

HUDSON, Justice.

Following
a jury trial, appellant/cross-respondent Devon Derrick Parker
was convicted of second-degree intentional murder and
sentenced to 480 months in prison, which reflected an upward
durational departure from the presumptive range of 312 to 439
months. On appeal, Parker challenged his conviction, arguing
both that the district court erred when it denied his motion
for a change of venue and that the prosecutor committed
misconduct during a pretrial press conference. Parker also
challenged his sentence, arguing that the district court
abused its discretion by imposing an upward durational
sentencing departure. The court of appeals affirmed the
conviction, but reversed the sentence and remanded for
resentencing. We affirm the court of appeals' decision to
uphold Parker's conviction, but disagree with its
conclusion that the district court abused its discretion when
it imposed an upward durational departure. We therefore
affirm in part and reverse in part.

FACTS

On the
morning of January 31, 2014, Devon Parker rang the doorbell
of the back door of a residence in north Minneapolis where
Thomas Sonnenberg lived with his wife. After Parker yelled
"guys are chasing me" and "trying to kill me,
" Sonnenberg unlocked the back door and Parker entered
the Sonnenbergs' home.

The
Sonnenbergs, very concerned about the security of their home,
had deadbolts on their doors that locked from either side,
meaning that without a key, a person could neither enter
nor exit the house. The day that Parker entered the
Sonnenberg residence, Sonnenberg, as was his customary
practice, had a loaded revolver holstered on his hip for
protection. There were two other guns in the kitchen.

After
Parker entered his home, Sonnenberg dialed 911. Sonnenberg
explained to the 911 operator that Parker had shown up at the
back door, "said that he needed help[, ] and charged
into" the kitchen once the door was unlocked. During the
call, Sonnenberg told the operator that Parker believed
people were chasing him. The operator assured Sonnenberg that
"help [was] on the way" and planned to "stay
on the phone" until the officers arrived. However,
Parker then got on the line and said someone was trying to
break into his brother's house at "3708
Bryant."[1] The call ended abruptly after Parker said,
"Please come on now. Please." Parker understood at
the time of the 911 call that Sonnenberg was trying to help
him.

After
the 911 call ended, Parker asked Sonnenberg to let him out of
the house, which was only possible with a key.
Sonnenberg's wife, out of sight in the adjoining dining
room, heard Sonnenberg respond by telling Parker that the
police were on their way and that he would be safe where he
was. Parker became uncomfortable when he realized that
Sonnenberg kept multiple guns in his house and that
Sonnenberg would not allow him to leave despite his requests.
Sonnenberg's wife heard Parker ask Sonnenberg for coffee
and a cigarette, to which Sonnenberg did not respond, and
after a period of silence, Parker began counting, "One,
two, three, four . . ." like he was "trying to
scare" Sonnenberg. She then heard a click and, later, a
gunshot. Parker claims that he heard the "click"
when Sonnenberg was in control of the gun, so he disarmed
Sonnenberg and directed him to sit at the kitchen table and
wait for the police. According to Parker, Sonnenberg
complied, but later made a sudden movement that caused Parker
to fear for his life.

It is
undisputed that Parker fatally shot Sonnenberg in the
forehead. Parker then entered the dining room, saw
Sonnenberg's wife for the first time, forced her
upstairs, and ordered her to find a key so Parker could leave
the house. A short time later, the police arrived and
arrested Parker.

The
State charged Parker with several offenses, including
second-degree intentional murder, Minn. Stat. § 609.19,
subd. 1(1) (2016). That same day, on February 3, 2014, the
county attorney held a press conference during which he
announced the charges against Parker and answered questions
from the media. In his introduction, the county attorney
commented on Sonnenberg's character, referring to him as
a "fine man" and "a Good Samaritan who is
doing what we always hope people do . . . help others."
In addition to Sonnenberg's character, the county
attorney mentioned Parker's prior record and sentencing
history, saying, "Parker had a prior record of more
minor crimes: obstruction with force; fifth-degree assault;
interference with an MTC bus driver, but nothing significant.
He had done time in the past, and ironically, he was supposed
to appear on Friday, the day this incident occurred, in
Hennepin County District Court to be sentenced on another
crime." Finally, the county attorney twice alluded to
Parker's constitutional right against self-incrimination.
He stated, in response to a question from the press, that
"Apparently Parker knows people in the neighborhood, but
we don't know because the only person who really knows
that is Parker, and he's not talking." Similarly, in
response to a question about Parker's possible motive,
the county attorney commented, "Our dilemma always is,
the defendant's got his constitutional right not to talk,
he's the one who can answer these questions frankly
better than I can."

The
county attorney's office later posted the video of the
press conference to its YouTube page, referring to Sonnenberg
as a "Good Samaritan" in the title of the video.
See HennepinAttorney, Man Charged in Murder of
Good Samaritan, YouTube (Mar. 3, 2014),
https://www.youtube.com/watch?v=hIuNHNjuQHA. The media
subsequently ran stories using the same "Good
Samaritan" phrase.[2]

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In
April 2015, over a year after the charging and press
conference, Parker filed a motion to change venue under Minn.
R. Crim. P. 25.02, which provides that a "change of
venue must be granted whenever potentially prejudicial
material creates a reasonable likelihood that a fair trial
cannot be had." Minn. R. Crim. P. 25.02, subd. 3. At the
motion hearing, Parker described the local media reports as a
"feeding frenzy" that amplified the
prosecutor&#39;s comments about Sonnenberg&#39;s character by
consistently using the phrase "Good Samaritan, "
which, according to Parker, had eliminated the possibility of
a fair trial. The State urged the district court to deny
Parker&#39;s motion to change venue. Citing State v.
Moore, 481 N.W.2d 355, 364 (Minn. 1992) (affirming the
denial of a motion to change venue where the 1-year-old news
coverage was factual in content and the parties had an
opportunity to question potential jurors about any exposure
to publicity during voir dire), the State argued that a fair
...

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